SpruceRoots Magazine - November, 1999
Safety Net or Managing to Extinction
by Erica Thompson
It was one winter's night and the winds were thunderous. Under the hissing rafters of Charlotte's United Church a group of Islanders sat back on their chairs ears pricked to the deliberations of Forest Practices Board Chair Keith Moore and Ministry of Forests District Manager Rory Annett. The star of the show was the Forest Practices Code and during that south-easter, in front of the church stage, the speakers seemed to transform into a protagonist and antagonist of a legal drama where dark shadows hang around the meanings of words, where risk, landscapes, legacy and public voice have more meanings than you could have ever expected.
That dark evening Moore put a seed of advice in the ears of us all. "If anybody here wants to read one section of the Code," he said, "read Section 41." That's the part of the Code which states the conditions under which the district manager can approve blocks and most importantly, he said, the conditions under which he must not approve the cut blocks.
We have all heard Queen Charlotte District Manager Rory Annett say his hands are tied and he is legally obligated to sign off operational plans if they meet the requirements of Section 41. But, what exactly does that mean? No one has ever said. What does it take to satisfy the district manager "that the plan or amendment will adequately manage and conserve the forest resources of the area to which it applies?"
Moore's advice was made over a year ago, and it appears the Ministry of Forests and the Forest Practices Board-the independent watchdog for public interest -are still debating. There is no wonder why. Forest Development Plans are the blueprints describing where logging and road building will appear on the landscape, how forest resources will be protected as trees turn into timber and land into right-of-ways and roads. Further, it is the only document the public has a legal right to review and make comment.
So, I set out to find myself a copy of the Forest Practices Code, put my feet up, pour a cup of coffee and take a look at Section 41. How much time could it take? How difficult could it be to come to an understanding of what it takes to satisfy the district manager an operational plan 'adequately manages and conserves forest resources' when the consequences appear from where I am sitting to be so clearcut.
That was a month ago. I've since drank countless pots of coffee, even changed brands a few times. The stack of photocopies, interviews, print outs from websites and faxes from Victoria and Vancouver have taken on monstrous proportions falling from the mouths of folders by the sheer momentum of their own weight. It has been a journey, a paper chase through MOF's legislation, regulations and guidelines on discretionary decision-making and risk management and I couldn't have ended up further from where I started.
There is a storm raging out there where the meanings of words such as 'adequate' and 'conserve' are being contested from kitchen tables to deputy ministers' desks, where risks to environmental values are penciled onto mathematical matrixes between 'real' and 'perceived' and where community concerns float weightless in the din of 'expert analysis' and 'scientific principles'. There is a storm of irony in our forests, the ministry's charged with managing them and our communities, where double signals and double meanings are easier to find than common sense .
In Search of 'Adequate'
In the search of a straight answer, this journey began at the beginning. Section 41(1) states: "the district manager must approve an operational plan or amendment submitted under the Part if:
(a) the plan was prepared and submitted in accordance with this Act, the regulations and the standards, and
(b) the district manager is satisfied that the plan or amendment will adequately manage and conserve the forest resource of the area to which it applies."
Section 41(1)(b) pertains more closely to what the ministry calls 'non-mandatory content' - information which is not required from the Operational Planning Regulations and Section 10 of the Forest Practices Code. This type of information, and the weight it is afforded depends upon the interpretive and discretionary decision-making abilities of the district manager; the art of managing risk.
Looking for some direction from the Ministry of Forests on what standards are being used by our statutory decision-makers to determine if Forest Development Plans adequately manage and conserve forest resources I came across a joint bulletin put out by Roberta Reader, Director of Compliance and Enforcement Branch of the Ministry of Forests on risk management in the application of Section 41(1)(b). The first roadblock I ran into was far from personally satisfying.
"When determining whether the licensee's proposal 'adequately manages and conserves' the forest resource, the term 'adequate' should be distinguished from 'optimal,' Reader writes. 'Adequate', according to Reader, means barely sufficient or satisfactory. Reader goes even further out on her limb directing statutory decision-makers that, "even when Section 41(1)(b) is used, "adequately manage and conserve" should not be confused with "optimal management and conservation."
'Barely sufficient' is not how I had assumed forest resources to be managed and conserved. Barley sufficient is just a sliver above ground zero, almost in the basement, the lowest common denominator. It wasn't what the Forest Practices Board feels the larger public's understanding of 'adequate' is either.
In a letter requesting the withdrawal of Reader's joint bulletin sent last June to the former Deputy Minister of Forests, John Allan, and Deputy Minister of Environment, Lands and Parks, Cassie Doyle, the Forest Practices Board legal counsel Calvin Sandborn says, "One could make the argument that 'adequately' means 'barely sufficient', but it would not be the mainstream definition of the term or a definition that the public would likely support, in regard to the Code forest development plans. The Board does not accept this interpretation of 'adequate'." Instead, the Board provides a definition of adequate meaning: "fully sufficient; equal to what is required; lawfully and reasonably sufficient" from the Ballentine's Law Dictionary. 'Fully sufficient' takes us out of the basement, up the stairs towards the ceiling.
On the issue of public understanding and perceptions of legislative content District Manager, Rory Annett, begs to differ, "there is no such thing as the public. There are publics. Any individual will have an opinion about the matter. How does one divine what the loose aggregation of public opinion is -- particularly as it changes and modifies through media perceptions and all that ... what is adequately manage and conserve? I would argue there are aligned publics that would have a strong interest in one outcome or another."
Risk Managing Public Voices
So, just what happens when members of the publics bring forward their concerns during the comment and review period of a Forest Development Plan? When there is a concern in the community a particular cut block may place undue risk on environmental values such as marbled murrelet habitat for example. What recourse does the 'public' have and what hope can they hold that their comments will have any bearing on the future development of the area? What sort of confidence can we hold that environmental, social and economic values are being adequately managed to conserve and protect forest resources under Section 41?
The Ministry of Forests has created a spectrum of concerns - there are 'real' risks determined through expert analysis grounded in scientific principles and then there are 'perceived risks'. That is the envelope you and I fall into. According to the MoF, perceived risk is based on individual or societal impressions, instincts, experiences or intuition rather than empirical analysis and should be carefully handled when applying them to forest management.
In the bulletin, Reader states, "reliance on perceived risk should only be exercised with extreme caution and should be saved for those circumstances where the potential magnitude of the loss raises the risk to the non-mandatory content resource to clearly unacceptable levels, say where there is the risk of elimination of a species or a population of species, or the triggering of a landslide into a major fish stream or a residential area."
She cautions the statutory decision-makers using Section 41(1)(b) as a basis for not approving operational plans or requesting that licensees modify their plans on the basis of non-mandatory information.
"Statutory decision-makers should use caution," Reader advises, "when using Section 41(1)(b) as a basis for not approving operational plans, or requesting that licensees modify their plans, on the basis of non-mandatory content. It is suggested that this use of 41(1)(b) be viewed as a safety net for those circumstances where a structured and disciplined application of risk management principles demonstrates that the proposed development does not adequately manage and conserve the forest resources, creating an unacceptable risk that a forest resource could either be lost or severely damaged. It is also suggested that the use of section 41(1)(b) should normally be based on compelling empirical evidence or informed professional opinion, but may in rare and usual circumstance be based on perceived or intuitive risk where the risk of loss is unacceptably high."
Does this mean the risk to a species or landscape must be so severe there is potential irrecoverable damage or loss altogether before public information contributions are to be considered by our decision-makers?
The Forest Practices Board is dissatisfied with the direction this Ministry bulletin guides the province's statutory decision-makers and the marginalization of the public from effectively participating in determining development planning in their forests. The Bulletin stacks the evidence deck in favour of approving the plan, says the Board.
"It is the Board's experience that members of the public often can offer expertise and empirical evidence. In fact, sometimes information from the public can be more expert, and more thoroughly documented, than that of government or company officials. In addition ... in many cases the member of the public providing information actually lives in close proximity to the site, personally knows the land, and is providing direct observations," says Sandborn. He adds, it is both "misleading" and "disrespectful" to imply all publicly provided information will generally fall into a category that is not considered to be a 'real risk' and not empirically or scientifically based.
Annett says the harder the data he receives from the public the better he can use it while making his decision whether to approve a plan or not.
"It depends on what the public says. If the public say to me look I know there is a marbled murrelet nest there and it is approximately in this location then that has a direct relationship to scientific knowledge. I can focus my attention in a scientific and rigorous way on that issue ... I would be inclined to look at those social issues in terms of what information has actually been provided to us. It is one thing for somebody to say to us they feel strongly about the place. Why? Why do you feel strongly about it, how many people feel strongly about it, and why do they feel strongly? What is the specific attribute of that area relative to the area right next to it that leads you to think it is very special?"
Preamble to the Forest Practices Code
At any moment of the day and from almost anywhere on the islands you can cast your gaze wide and look out across hundreds of miles of risk managed landscapes. Vast tracts of cutblocks representing the millions of cubic meters of forest felled, bucked, scaled and barged south reflect in very living terms the countless number of Forest Development Plans signed off on Haida Gwaii.
The double edge of irony is inherent in the debate between the public, on the part of the Forest Practices Board, and the Ministry of Forests. The meaning of words used in our legislation and acted out in forest development plans and eventually upon our hillsides, valleys and alpine outer reaches are still being contested.
Despite the barred teeth debate over interpretations of the Code there is one piece of the legislation which it would do us all good to recall and that is the Preamble to the Code.
It is here the desires of British Columbians are clearly stated: "sustainable use of the forests they hold in trust for future generations." Sustainable use including the management of forests to meet present needs without compromising the needs of future generations, providing stewardship of forests based on an ethic of respect for the land, the balancing of economic, productive, spiritual, ecological and cultural needs of peoples and communities, the conservation of biological diversity, soil, water, fish, wildlife, scenic diversity and other forest resources and the restoration of damaged ecosystems. It is all right there.
The interpretation of 'adequately manages and conserves' suggested by MOF's Roberta Reader is, even to a layperson, way out of line with the intent of the Code's preamble.
Annett says the intention of the Code's preamble is legally binding, however, the problem with its principles is they lack testing. There is a multiplicity of interpretations falling around principles such as 'stewardship' or 'legacy', he says, and everybody has a different point of view on exactly what they mean.
"I think the preamble defines a vision and visions are good things but what one needs are specific objectives in order to meet the vision," says Annett. "One needs measures to meet the objectives, then you need to compare and contrast that with the information you've got and the competing interests and that is something that ultimately requires the application of professional judgment and testing through public process ... It is not appropriate to ask a statutory decision-maker to exercise his discretion under 41(1)(b) if the real problem is the vision isn't right. If the vision isn't right then a Higher Level Plan is what is required, or a treaty negotiation or the appropriate mechanism. [Section] 41 was never intended to be a catch all for all the land use planning, First Nations issues ... I think there has been a sense that perhaps the personal views of the statutory decision-maker (is Rory green or is he brown? and what is he going to do now?) well it shouldn't matter. It really shouldn't. I don't have that room and I am here to act in the public interest. Period."
I suppose just which public's interest that is remains to be seen. This drama of semantics seems quarrelsome and even fussy but the power of these words have very real implications for the forest; these definitions set the parameters within which district managers approve, reject or set conditions on operational plans. If the debate around 'adequate' reveals anything it is the canyons which trouble our understanding of words, their implications, and the ability of public(s), the government and industry to work together; to hear and understand one and other.
When we hear the district manager say his hands are tied by the legislation there is a lot to take into consideration, the tangle of semantics being only the point of departure.
SpruceRoots Magazine - November, 1999